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The High Court’s view on ‘person aggrieved’

In Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50 (Argos), the High Court of Australia (HCA) recently affirmed that the meaning of ‘person aggrieved’ for the purposes of judicial review should not be interpreted narrowly and can include persons whose economic interests have been adversely affected by a decision. This article provides a brief summary of the decision and explains the possible impact upon administrative decision-making.

BACKGROUND TO THE REVIEW OF JUDICIAL DECISION-MAKING

In the late 1970s, the Federal Parliament enacted the Administrative Decisions (Judicial Review) Act 1977 (Cth) in order to simplify the judicial review process for decisions made under Commonwealth legislation. The States and Territories adopted similar legislation in their respective jurisdictions, which provide a mechanism for review of administrative decisions made under State/Territory legislation (the ADJR Acts).

This statutory review scheme provides that in order for a person to be able to challenge an administrative decision in the courts, such as a decision of a Minister or their Delegate, the person must have standing to bring the challenge. Under the Commonwealth Act and under several of the State/Territory Acts, the standing requirement means a person must be an ‘aggrieved person’.

The HCA in Argos provides an explanation of the term ‘person aggrieved’ in the context of the Australian Capital Territory ADJR Act [1]

THE DISPUTE

Two property developers (the second and third respondents) applied to the ACT Minister for the Environment and Sustainable Development (the first respondent) in order to gain approval for a commercial development in the suburb of Giralang. The development included the construction of a supermarket and other speciality stores. The Minister approved the proposal under s 162 of the Planning and Development Act 2007 (ACT).

Three separate entities sought to challenge the Minister’s decision to approve the development proposal. The third appellant operates a supermarket in the neighbouring suburb of Evatt. The second appellant operates a supermarket in another neighbouring suburb of Kaleen, the land of which it leases from the first appellant.

The second and third appellants submitted that the introduction of another supermarket so close to their businesses would result in at least an 8.5% reduction in the annual turnover of the Kaleen store and a 7.5% reduction in the annual turnover at the Evatt store and possibly the closure of their stores.

The first appellant had a different submission – namely, that it may lose all or some of the value of its lease to the second appellant should the Kaleen store suffer loss as a result of the development.

DID THE APPELLANTS HAVE A RIGHT TO CHALLENGE THE DECISION?

The appellants could only challenge the Minister’s decision under the ADJR Act if they were found to be ‘persons aggrieved’ by the decision. The appellants relied on s 3B(1)(a) of the definition which states that an aggrieved person is ‘a person whose interests are adversely affected by the decision’.

The Supreme Court of the ACT, both at first instance and subsequently on appeal, rejected both submissions of the appellants. It was held that neither of the three appellants could be considered a ‘person aggrieved’ by the Minister’s decision within the meaning of the ADJR Act as their potential loss to profitability was ‘too remote’ (per Burns J).

However, on appeal, the HCA accepted the contention of the supermarket operators, finding that they were ‘persons aggrieved’ for the purposes of the ADJR Act.

There are several types of interests that can be adversely affected by an administrative decision – for example, legal rights, privileges, permissions or interests. What is required is that the effect on the interest will be adverse and different to that suffered by the public at large. In Argos, the effect on the supermarket operators was economic in nature.

The HCA held that it was enough that the second and third appellants ‘would suffer a not insignificant loss of profitability in their businesses’. It was this loss that meant they were ‘persons aggrieved’ for the purpose of the Act, as it would lead to an adverse effect on their interests.

However, a majority of the HCA did not accept the contention of the first appellant who leased land to the Kaleen supermarket operator. The Court found that the effect on the first appellant’s interest was indirect only and there was no evidence to suggest that the value of its lease would be affected by the decision.

The majority of the Court also found that the statutory criterion for standing under s 3B does not alter according to the scope and purpose of the enactment under which a decision is made or purported to be made.

WHAT DOES THIS MEAN FOR REGULATORS?

The HCA has made it clear that the plain meaning of the term ‘person aggrieved’ is to be used, which should not be interpreted restrictively. It has also confirmed that the adverse effect on economic interests can satisfy the test. This decision acts as an important reminder for administrative decision-makers to bear in mind the range of interests that may be affected by the decisions they make and the subsequent challenges that may be made.

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